John Mancuso vs. FLORIDA METROPOLITAN UNIVERSITY, INC.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-61984-CIV-COHN/SELTZER
CONSENT CASE
JOHN MANCUSO, on behalf of himself
and all others similarly situated,
Plaintiff,
vs.
FLORIDA METROPOLITAN UNIVERSITY, INC.
EVEREST UNIVERSITY, and CORINTHIAN
COLLEGES, INC.
Defendants.
/_______________________________________
ORDER
THIS CAUSE is before the Court on Plaintiff’s Motion to Permit Court Supervised
Notice Advising Similarly Situated Individuals of Their Opt-in Rights Pursuant to 29 U.S.C.
§ 216(B) (DE 3) and the matter having been referred to the undersigned pursuant to the
consent of the parties and the Court being sufficiently advised, it is hereby ORDERED that
the Motion is GRANTED in part for the reasons set forth below.
BACKGROUND
Plaintiff John Mancuso is employed by Defendants, Florida Metropolitan University,
Inc., Everest University, and Corinthian Colleges, Inc., as an admissions representative;
he works at the Pompano Beach campus of Everest University.  Mancuso Aff. ¶ 5, Ex. A
(DE 3);Clem Decl. ¶ 4 (DE 31-1).  As alleged in the Complaint, Defendants “operate[] a
business  offering educational classes and degrees.”  Complaint ¶ 6 (DE 1).  Plaintiff  Plaintiff originally defined the class as similarly situated employees and former
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employees located in Florida.  In his Reply, Plaintiff limited the prospective class to those
at the Everest University  Pompano Beach, Florida campus  at which  he is employed.
According to Shane Clem, the Regional Vice President of Corinthian Colleges, Inc., there
are currently 23 admissions representatives (including Plaintiff) working at that location.
Clem Decl. ¶ 6 (DE 31-1).
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alleges that he and other similarly situated current or former employees of Defendants
“were not  paid time  and one-half of their regular pay for all overtime hours worked
beginning on or after November, 2006, in violation of the Fair Labor Standards Act
(“FLSA).”  Id. at ¶ 8.   Plaintiff now moves the Court to conditionally certify a collective
action and to order notice to facilitate opt-in plaintiffs to join in this action.  The prospective
opt-in plaintiffs are former and current admissions  representatives  employed  by
Defendants at  the Pompano Beach, Florida campus  from December 17,  2006,  to
December 17, 2009. 
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LAW AND ANALYSIS
Title 29 U.S.C. § 216(b) permits a plaintiff to bring a collective action on behalf of
himself and others similarly situated; the similarly situated plaintiffs must affirmatively opt
in to the collective action.  See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir.
1996).  A prospective opt-in plaintiff must give “consent in writing to become such a party
and such consent [must be] filed in the court where such action in brought.”  29 U.S.C.
§ 216(b).  In managing collective actions, courts have the discretion to authorize a notice
of opt-in rights to prospective members of the class.  Hoffman-LaRoche, Inc. v. Sperling,
493 U.S. 165, 169-74 (1989); Dybach v. Florida Dep’t of Corrections, 942 F.2d 1562,
1567-68 (11th Cir. 1991). Before authorizing such notice, however, a court “should satisfy3
itself that there are other employees of the defendant-employer who desire to ‘opt-in’ and
who are ‘similarly situated’ with respect to their job requirements and with regard to their
pay provisions.”  Id. at 1567-68.
The Eleventh Circuit has endorsed a two-stage procedure that courts may (but are
not required to) use to determine whether to certify a collective action.  In Hipp v. Liberty
National Life Insurance Co., 252 F.3d 1208 (11th Cir. 2001), the court described this
“effective tool for district courts to use in managing” collective actions:
The first determination is made at the so-called “notice stage.”
At the notice  stage, the district  court makes a decision –
usually based only on the pleadings and any affidavits which
have been submitted – whether notice of the action should be
given  to  potential class  members.  Because  the  court has
minimal evidence, this determination is made using a fairly
lenient standard, and  typically results  in “conditional
certification” of  a  representative  class.  If  the  district court
“conditionally certifies” the class, putative class members are
given  notice and the opportunity to “opt-in.”  The  action
proceeds as a representative action throughout discovery.
The second determination is typically precipitated by a motion
for  “decertification”  by  the  defendant  usually  filed after
discovery is largely complete and the matter is ready for trial.
At this stage, the court has much more information on which to
base its decision, and makes a factual determination on the
similarly situated question. If the claimants are similarly
situated, the district court allows the representative action to
proceed to trial.  If the claimants are not similarly situated, the
district court decertifies the class, and the opt-in plaintiffs are
dismissed without prejudice. The class representatives – i.e.
the original plaintiffs – proceed to trial on their individual
claims.
Id. at 1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995)).
The representative plaintiff bears the burden of demonstrating that a collective action  In their affidavits, the opt-in plaintiffs each state that they know other admission
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representatives working at the Pompano Beach campus that would be willing to join this
action if they had the opportunity to do so and/or if they could be assured there would be
no retribution from Defendants.  
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should be conditionally certified.  Id. at 1219.  Although this burden is not a heavy one, a
plaintiff must make “detailed allegations supported by affidavits which successfully engage
defendants’ affidavits to the contrary.”  Id. (quoting Grayson, 79 F.3d at 1097).
The instant motion implicates the first stage of the analysis; Plaintiff now only seeks
leave to send notice to potential class members advising of their right to opt-in to this
action. Hence, the Court will look to the pleadings and affidavits to determine whether
there is sufficient evidence in the record demonstrating that there are other current or
former employees of Defendants that desire to join in this action and whether the putative
class members are similarly situated to the Representative Plaintiff.
In support of his request, Plaintiff has submitted his own affidavit and the affidavits
of three former employees of  Defendants – Laurie Klazer,  Andrew Heidlebaugh, and
Johanne Benjamin – together with each former employee’s “Consent to File Action,” giving
their consent to  become a party plaintiff  herein.  In addition, (presumably) another
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employee or former employee, Eric McElhinly, has filed in the record a “Consent to File
Action” without a supporting affidavit.  Although the Eleventh Circuit has never quantified
the number of similarly situated employees that a plaintiff must identify to gain conditional
certification, other courts in this District have found that the same number of (or even
fewer) as that identified here by Plaintiff is sufficient.  See, e.g., Wynder v. Applied Card
Systems, Inc., No. 09-80004-CIV, 2009 WL 3255585, at *3 (S.D. Fla. Oct. 7, 2009) (Marra,  Defendants argue that Plaintiff and the opt-in plaintiffs are not similarly situated
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because  they all do not have  the same job title. In their affidavits, opt-in plaintiffs
Heidlebaugh and Klazer aver that they were employed as an Admissions Representative.
Although opt-in plaintiff Benjamin states that he was employed as a Campus Admissions
Representative, he further states that he had the same job responsibilities as Plaintiff
Mancuso.  Additionally, the Everest University “Florida Adult Admissions Representative
Compensation Program – Minimum Core Competencies of Performance” submitted by
Plaintiff identifies six levels of admission representatives.  However, the job responsibilities
are the same for all six levels, save for the minimum “starts” each level is responsible for
generating.  A “start” refers to a student entering the university to begin taking classes.
Moreover, at the notice stage, plaintiffs “need only show that their positions are similar, not
identical, to the positions held by the putative class members.”  Grayson, 79 F.3d at 1096.
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J.) (conditional certification granted based on named affidavit of named plaintiff and one
other putative class member); Guerra v. Big Johnson Concert Pumping, Inc., No. 05-
14237-CIV, 2006 WL 2290512, at *4 (S.D. Fla. May 17, 2006) (Martinez, J.) (conditional
certification granted based on affidavits of named plaintiff and one opt-in plaintiff); Reyes
v. Carnival Corp., No. 04-21861-CIV, 2005 WL 4891058, at *6 (S.D. Fla. May 25, 2005)
(Gold, J.) (conditional certification granted based on affidavit of named plaintiff and two
opt-in plaintiffs).  Accordingly, the Court finds  Plaintiff’s submissions  are sufficient to
demonstrate that others desire to join in this action.
The Court must next determine whether the putative class members are similarly
situated to Plaintiff with respect to their job requirements and their pay provisions.  The
affidavits submitted herein establish that Plaintiff and the opt-in plaintiffs all worked at the
Pompano Beach (Florida) campus as admission representatives during the relevant time
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periods.  All opt-in plaintiffs indicated that,  although  occasionally paid overtime, they
frequently worked more than 40 hours a week without overtime pay. It further appears that
at least two of the opt-in plaintiffs were supervised by the same individuals as Plaintiff.  6
In his Reply, Plaintiff  summarized  his March 3, 2010 deposition testimony with
respect to the alleged FLSA violations:
1. Defendants gave “Fran Cards” in lieu of paying
overtime.  If Plaintiff worked more than forty (40) hours,
Defendants would give a “Fran Card” which
represented the number of overtime hours.  [Plaintiff]
could use the “Fran Card” during a  subsequent  pay
period as a substitution for regularly worked hours,
however, Defendants would not compensate Plaintiff at
an overtime rate for their overtime hours.
2. Plaintiff was repeatedly pressured by his supervisors,
and the President of the school, Dr. Ilia Martin to “do
what you’ve got to do to make your numbers,” referring
to achieving Defendants’ sales goals.  However,
Plaintiff would also be advised to “put forty hours on his
time sheets.”
3. Plaintiff has  had conversations  with his most recent
supervisor,  Leslie Greer,  “almost every pay period”
regarding why he was not being paid overtime.  Despite
these conversations, Plaintiff was advised that he would
not be paid his overtime, but was still held to achieving
all of his sales goals.
4. The most accurate recording of Plaintiff’s hours worked
are handwritten sign in sheets which Plaintiff would fill
out upon entering Defendants’ office on a daily basis.
Plaintiff also testified that the computer generated time
cards only reflect an accurate number of hours worked
during the limited number of weeks the Defendants
authorized overtime pay. 
Reply at 4 (DE 38).
The affidavits of the opt-in plaintiffs relate similar types of (alleged) FLSA violations.
Heidlebaugh avers his supervisors repeatedly told him to do whatever was necessary to
get the job done; yet, he often was not paid for overtime hours.   He additionally states that7
his immediate supervisor, Fran Heaston, repeatedly instructed him to remove overtime
hours  from his time card as he would not be paid for  those hours.   According to
Heidlebaugh, his computerized time sheets did not accurately represent the full amount
of hours he had worked and even his handwritten sign-in sheets did not always account
for all his hours because he was sometimes required to fill in the time sheets prior to the
end of the pay period.  Heidlebaugh was also given “Fran cards” in lieu of being paid for
overtime hours.
In her affidavit, Klazer avers that when  she advised her immediate supervisor,
Martin Levert, that she was working overtime, he instructed her to log only 40 hours.
Supervisors Levert and  Heaston told Klazer that she needed to do whatever was
necessary to take care of business and meet her sales goal; yet, the supervisors also told
her she would not be paid overtime. Klazer too avers that her computerized time sheets
do not accurately represent the hours she worked and that her handwritten sign-in sheets
were not always accurate due to being required to fill out the sign-in sheets prior to the end
of the pay period. 
So too, Benjamin avers that he was advised by supervisors Heaston and Levert that
even if he worked more than 40 hours a week, he was not to log any hours in excess of
that number on his time card.  The supervisors, however, simultaneously and repeatedly
told him he was to continue to work as many  hours  as  necessary to meet his sales
objectives.  Benjamin was also given Fran Cards in lieu of overtime pay. 
Based on this evidence, the Court finds that Plaintiff has meet the lenient burden
at this notice stage of showing that he and the opt-in plaintiffs are similarly situated for the8
purpose of conditional certification.
FORM OF NOTICE
Plaintiff has submitted a proposed “Notification to Potential Class Members.”  (DE
38-6).  Defendants have raised several objections to the form of the Notice, including the
date  from which  a three-year period should be  measured, the  inclusion of language
indicating that the Notice has been approved by the Court, the inclusion of the number of
individuals who have already opted-in, and the inclusion of the statement encouraging
potential plaintiffs to contact Plaintiff’s counsel.  Additionally, Defendants argue that the
Notice should disclose the identity of Defendants’ counsel, disclose the requirement of the
opt-in plaintiffs’ participation in this action, and disclose the possibility that the opt-in
plaintiffs may be liable for Defendants’ costs if they are unsuccessful on the merits of their
claims.  Finally, Defendants argue that the Notice should not be posted at the Pompano
Beach campus.   Because Defendants first raised these objections in their Surreply,
Plaintiff has not had an opportunity to address them and, therefore, the Court will not now
decide the form of the Notice to be sent to potential class members.  Instead, the Court will
require the parties to confer and attempt to agree on the language to be used in the
Notice.  And if the parties cannot agree, then the Court will permit Plaintiff to address
Defendant’s objections. 
Based on the foregoing, it is hereby ORDERED as follows:
1. Plaintiff’s Motion to Permit Court Supervised Notice Advising Similarly
Situated Individuals of Their Opt-in Rights Pursuant to 29 U.S.C. § 216(B)  (DE  3) is
GRANTED to the extent that it requests that the Court conditionally certify a collective9
action and order notice be give to facilitate opt-in plaintiffs to join in this action.   The Court
will defer ruling on the form of the notice to be given to potential opt-in plaintiffs.
2. On or before June 30, 2010, counsel for the parties shall confer in person or
by telephone in a good faith attempt to agree on the form of the Notice and Consent to
Become a Party Plaintiff.  If the parties are able to reach agreement, they shall promptly
submit the agreed Notice and Consent to the Court for approval.  If the parties are not able
to agree on the proposed forms, then on or before July 12, 2010, Plaintiff shall file a
memorandum that addresses Defendants’ arguments with respect to the Notice and that
identifies any objections the parties have resolved.
DONE AND ORDERED in Fort Lauderdale, Florida, this 24th day of June 2010.
Copies to:
All counsel of record